Justice denied? The exceptional clearance of rape cases in Los Angeles.

• Author: Spohn, Cassia

With homicide your victim isn't going to be interviewed; their trauma is over. In most property crimes sure there is trauma, your car was stolen. But nothing can compare to sexual assault. We don't get enough training in trauma, in dealing with the trauma of victims, and the when and how of interviewing them. It's a very unique crime that victims don't get over, and they definitely won't get over it as long as the perp is rolling around.

--Detective, Los Angeles County Sheriffs Department. (1)

I worked patrol for a long time and I was one of "those" officers. The key is not to get jaded and to realize that weird stuff does happen with regards to sex crimes. Patrol officers are our first line of contact for victims and once they [victims] have a bitter taste in their mouths it's difficult. Guys [police officers] are nervous to handle it because they don't know how to talk about it and are too embarrassed to say penis, etc. I'm not saying that women rule, because there are guys out there that are fabulous. But, fortunately or unfortunately, patrol has first contact [with victims].

--Detective, Los Angeles Police Department. (2)

More often than not once they have [victims] gotten to the DA's office it's fairly rare and unlikely that they will not want to talk. They have no idea about the system and what we say means a lot. They take their cues from what we say.

--Deputy District Attorney, Victim Impact Program, Los Angeles County District Attorney's Office. (3)

1. INTRODUCTION

   Thirty-five years ago, Susan Brownmiller wrote in Against Our Will: Men, Women and Rape that the complaints of rape victims often were met with insensitivity and/or hostility on the part of police and other criminal justice officials. (4) Brownmiller noted that, contrary to Lord Hale's assertion that "rape is an accusation easily to be made," (5) many rape victims did not report the crime to the police, and that those who did soon discovered that, consistent with Lord Hale's homily, it was a crime "hard to be proved." (6) As we enter the second decade of the twenty first century, the issue of police and prosecutor handling of sexual assault complaints continues to evoke controversy and spark debate. (7) Critics charge that police make inappropriate decisions regarding whether rape cases should be accepted for investigation, misclassify rape and other sex crimes as non-crimes based on archaic notions of what constitutes "rape," unfound reports at unreasonably high rates, and fail to adequately investigate the cases they do accept. (8) Such critics also allege that prosecutors' assumptions regarding "real rapes" and "genuine victims" lead them to decline to file charges in cases in which it is clear that a sexual assault occurred but in which it also is clear that the odds of proving the case to a jury are low. (9) As Michelle Madden Dempsey put it in her testimony at a recent United States Senate hearing convened to investigate the response of the criminal justice system to the crime of rape, "the chronic failure to report and investigate rape cases ... is part of a systemic failure to take rape seriously both within the criminal justice system and within our communities more generally." (10)

   Missing from these critiques is any discussion of the use (and misuse) of the exceptional clearance by police. As we explain in more detail below, cases can be cleared, or solved, by the police in two ways: by the arrest of at least one suspect or by clearing the case exceptionally. Although cases that are exceptionally cleared do not result in the arrest of the suspect, they are considered solved in the sense that the suspect is known to the police but there is something beyond the control of law enforcement that precludes the police from making an arrest (e.g., the victim refuses to cooperate in the prosecution of the suspect, or the suspect has died or cannot be extradited). If police officers are clearing cases inappropriately--the rules for doing so are clearly articulated by the Federal Bureau of Investigation's Uniform Crime Reporting Handbook (11)--and are either failing to investigate sexual assault cases thoroughly or not making arrests when they have probable cause to do so and when the victim is willing to go forward with the case, there is the potential for a miscarriage of justice. Specifically, the misuse of the exceptional clearance raises the possibility that individuals who may in fact be guilty of rape are not arrested, prosecuted, and punished.

   Also missing from these critiques is discussion of the role that the prosecutor plays in clearing cases. Prior research on prosecutorial decision-making in sexual assault cases has focused on the formal decision to file charges or not once an arrest has been made. (12) This research assumes, either explicitly or implicitly, that the prosecutor's role in the process begins when the police arrest a suspect and present the case to the screening unit for a charging decision. This ignores the fact that law enforcement officials may present the case to the prosecutor prior to making an arrest and, based on the prosecutor's assessment of the evidence in the case and evaluation of the credibility of the victim, either make an arrestor (inappropriately) clear the case exceptionally. The role of prosecutor, in other words, may begin well before an arrest is made and the decisions he or she makes may influence, indeed determine, how the case is cleared.

   The purpose of this paper is to investigate the use of the exceptional clearance in sexual assault cases. Using data on sexual assaults reported to the Los Angeles Police Department ("LAPD") and the Los Angeles County Sheriffs Department ("LASD") from 2005 through 2009, we examine the way these cases are cleared, with a focus on cases that are cleared by arrest and by exceptional means. In addition, we use detailed qualitative and quantitative data on a sample of cases from 2008 to identify the characteristics of cases that are cleared exceptionally and to evaluate the reasons given by police and prosecutors to justify this type of clearance. We begin with a discussion of the circumstances under which cases may be cleared exceptionally and with a summary of the limited research examining the use of this clearance type. We then describe the decision-making context in Los Angeles, with a focus on the role played by the prosecutor in the "pre-arrest screening process." The following section examines cases cleared by exceptional means and evaluates the extent to which these cases meet the four criteria that the FBI requires be met before this clearance type can be used. We end the paper with a discussion of the policy implications of (mis)using the exceptional clearance.

2. CASE CLEARANCES: CLEARED BY ARREST AND BY EXCEPTIONAL MEANS

   According to the Uniform Crime Reporting Handbook, offenses are "cleared either by arrest or ... exceptional means." (13) The handbook states that "[a]n offense is cleared by arrest, or solved for crime reporting purposes, when at least one person is (1) arrested, (2) charged with the commission of the offense, and (3) turned over to the court for prosecution (whether following arrest, court summons, or police notice)." (14) Regarding exceptional clearances, the handbook notes that there may be occasions where law enforcement has conducted an investigation, exhausted all leads, and identified a suspect but is nonetheless unable to clear an offense by arrest. (15) In this situation, the agency can clear the offense by exceptional means, provided that each of the following questions can be answered in the affirmative:

   * Has the investigation definitely established the identity of the offender?

   * Is there enough information to support an arrest, charge, and turning over to the court for prosecution?

   * Is the exact location of the offender known so that the subject could be taken into custody now?

   * Is there some reason outside law enforcement control that precludes arresting, charging, and prosecuting the offender? (16)

   To illustrate the types of cases that might be cleared by exceptional means, the handbook provides a list of examples, many of which involve the death of the offender, or an offender who is unable to be arrested because he or she is being prosecuted in another jurisdiction for a different crime or because extradition has been denied. One of the examples provided is when the "[v]ictim refuses to cooperate in the prosecution" but there is an added proviso stating that victim non-cooperation alone does not justify an exceptional clearance. (17) The answer must also be "yes" to the first three questions outlined above. (18)

   In his review of the development of the uniform crime reporting system, Feeney notes that the instructions contained in the early Uniform Crime Reporting ["UCR"] handbooks defined exceptional clearances very narrowly (19) and reflected an expectation that "most clearances would be based on arrests and that the number of exceptional clearances would be limited." (20) He bolsters this argument by pointing out that since the inception of the UCR, the FBI has labeled its tables of clearance data "cleared by arrest." (21) According to Feeney, "[t]here can be little doubt that arrest is the decisive event in the vast majority of instances in determining whether a clearance is to be recorded or not." (22)

   Feeney also takes issue with the fact that some jurisdictions have interpreted the term "charged" in the definition of cleared by arrest (i.e., cleared by arrest requires that the suspect be charged with the commission of the offense) to mean charged by the prosecutor. He argues that the term meant (and continues to mean) charged by the police and not by the prosecutor. (23) Feeney bases this position on the fact that the developers of the uniform crime reporting system envisioned collecting data not only on offenses known to the police but also on persons charged by the police. According to...